Opinion
No. 2003-CA-00192-COA.
October 12, 2004. Rehearing Filed October 25, 2004.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. STEPHEN B. SIMPSON, DATE OF TRIAL COURT JUDGMENT: 3/28/2002
DISPOSITION: REVERSED AND REMANDED IN PART ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL
ATTORNEYS FOR APPELLANTS: HENRY LAIRD, SUSAN FAHEY DESMOND
ATTORNEY FOR APPELLEE: JOHN M. HARRAL
EN BANC.
¶ 1. Rebecca Allen sued Morris Newspaper Corporation and Tom MacArthur in the Circuit Court of Harrison County for defamation, intentional infliction of emotional distress, and breach of an employment contract, including breach of the implied covenant of good faith and fair dealing. At the close of Allen's case, the court directed verdicts on Allen's claims for defamation and intentional infliction of emotional distress, leaving solely the breach of contract claim before the court. The jury returned a verdict for Allen in the amount of $227,000. Morris and MacArthur appeal, arguing that the trial court erred by allowing Allen to recover damages for mental anguish, by denying three of the defendants' motions in limine, by failing to grant a JNOV, and by awarding post-judgment interest at the rate of eight percent. Allen crossappeals, arguing that the trial court should have allowed the jury to consider punitive damages.
¶ 2. Finding error, we affirm in part and reverse and remand in part for a new trial limited to the issue of actual damages for breach of the employment contract.
FACTS
¶ 3. The following facts were presented at the trial. Rebecca Allen was a news producer at WLOX-TV. She had a lifelong dream to be the anchor of a news program. In the summer of 1998, Allen began discussions with Tom MacArthur, the general manager of WXXV-TV, regarding employment as an anchor at a start-up news program at WXXV. WXXV is a Fox affiliate owned by Morris Newspaper Corporation. WXXV planned to begin broadcasting its news program in March 1999. In December 1998, MacArthur hired a news director, Tom Russo, and Russo and MacArthur agreed to hire Allen. Russo and MacArthur testified that they thought Allen was right for the job because, though she lacked experience as a full-time anchor, she was familiar with the Mississippi Gulf Coast, was a known radio personality with a morning radio show, would mature as an anchor, and would accept a salary within WXXV's budget. Russo and MacArthur were aware that Allen was very excited about being an anchor.
¶ 4. Russo, MacArthur and Allen orally agreed that Allen was to function at WXXV as a news anchor and reporter. However, Allen and MacArthur later signed an employment contract providing that Allen accepted "such employment . . . in such capacity and with such duties as assigned by News Director or his designee." The contract stated that Allen would be employed for three years and that WXXV could terminate Allen "upon thirty days prior notice to Employee for `Cause' (such Cause being specified therein) as reasonably determined in good faith by the General Manager of the Company." The contract provided for Allen's salary, totaling $71,000, and clothing allowance for each of the three years. The salary provided by the contract was $6,000 lower than the parties had originally intended; WXXV paid Allen the $6,000 in a lump sum to allow Allen to buy out her contract with WLOX, thus freeing her to work for a competing television station.
¶ 5. Allen began work at WXXV on February 1, 1999. For the first two or three weeks, Allen and the other employees performed manual labor such as painting and assembling furniture and equipment in order to get the station ready to broadcast the news. Later, Allen completed several reporting projects. WXXV's first news program was scheduled to air on the evening of Monday, March 15. Due to budget constraints, WXXV had been unable to hire seasoned employees or to obtain the best equipment; consequently, WXXV experienced a multitude of difficulties in preparing for the live news program. Because of the problems, Russo decided that the first show would be a taped program about the Beau Rivage casino instead of a live show. The Beau Rivage special was taped on March 15 and aired at 10:00 p.m. that night, an hour later than scheduled. Allen was the anchor on that show.
¶ 6. The Beau Rivage special was rife with problems that were apparent from viewing the show. The next day, the station began preparing for the first live news show scheduled for the next Monday. Allen left around 4:00 p.m. because she felt sick and called in sick Wednesday and Thursday.
¶ 7. On Friday, Russo and MacArthur met with Allen and told her she would no longer be the evening anchor. They demoted her to a reporter position at the same salary. They told her that she might be made an anchor in the future after gaining more experience as a reporter. Robin Uchima, originally hired as a reporter and an anchor for a planned morning show, was named Allen's replacement as the evening anchor. There was testimony that Uchima was a longtime friend of a Fox vice-president that had visited WXXV. Allen spent much of the meeting trying to convince Russo and MacArthur to change their minds about the demotion, but to no avail.
¶ 8. On Saturday, Allen called MacArthur in an effort to persuade him to change his mind about the demotion; he remained steadfast. On Sunday afternoon, Allen told Russo that she would perform the reporting job and would be in the next day. Then on Sunday evening, Allen phoned Russo and told him that she was sick and too physically and emotionally distraught over the loss of the anchor position to come to work for a few days, but that she had three completed reporting projects ready for broadcasting. According to his testimony, Russo told Allen that she was needed at WXXV to help prepare for Monday's live broadcast, but he allowed Allen to stay home because she maintained that she was unable to work.
¶ 9. On Monday morning, Allen performed her morning show on the radio. Russo, MacArthur, and other WXXV employees heard Allen on the radio. Allen also performed the radio show on Tuesday and Wednesday and remained absent from WXXV. On Thursday, Allen came to work at WXXV and was called into a meeting with Russo, MacArthur and Warren Dearman, the assistant news director. They requested that Allen quit, and Allen refused. Allen came to the station again on Friday, and MacArthur gave her the choice of resigning by signing a form or being fired. Because the resignation form required Allen to repay the $6,000 which WXXV had given her to buy out her WLOX contract, Allen refused to sign the form and left the station. She came to the station again on Monday, refused to sign the form, and was fired but her salary was to continue for the next thirty days. After she was fired, Allen continued to work at the radio station and performed some singing jobs until October 2001, when WLOX rehired Allen, this time as a live reporter and full-time weekend anchor.
¶ 10. Russo testified that his decision to demote Allen was based upon her poor performance during tapings of the Beau Rivage special and upon a practice run with Uchima as the anchor, in which Uchima demonstrated superior performance. Russo and MacArthur testified that Allen had difficulty working with others at the station, was not a "team player," and that they had fielded many complaints about her from other employees. MacArthur testified that Russo talked with Allen about her arriving late in the mornings after her radio show. Russo and MacArthur said that they and other employees were incensed that Allen performed her radio program after claiming that she was too distraught to work, and leaving the other WXXV employees to put on the first live show without her. Russo stated that he wanted to fire Allen because, along with the other problems, when Allen performed the radio show while on sick leave from WXXV, "[s]omething [had] to give." MacArthur testified that Russo met with him and urged that Allen be fired, and MacArthur agreed.
¶ 11. Allen maintained that WXXV and MacArthur breached the contract by firing her without cause and based upon ulterior motives. Allen testified that the only reasons MacArthur communicated for the termination were that she was not a team player and that no one liked her. She stated that, at the termination meetings, MacArthur yelled and cursed at her, called her a "prima donna bitch" and "the Antichrist," and pounded on his desk. Allen stated that she had performed at her best at WXXV, that no one had ever come to her with criticism, and that she had gotten along well with her fellow employees. The employee handbook required that all warnings and reprimands be kept in the employee's file, and no negative comments about Allen's job performance appeared in her file.
¶ 12. Allen testified that, after she was fired, she called MacArthur because she had not received her final paychecks. MacArthur refused to give her the checks until she signed a form promising to pay Morris the $6,000 Morris had given her to buy out her WLOX contract. Allen did not pursue the matter further, and received the checks four months later, after MacArthur left WXXV. MacArthur testified that his secretary called Allen and told her the checks were available but Allen never picked them up.
¶ 13. Allen speculated that her own rejection of MacArthur's improper sexual advances caused her demotion and firing. Allen testified that MacArthur sexually harassed her on several occasions after she began work at WXXV. She stated that MacArthur had made several inappropriate comments about her appearance, rubbed her back and hugged her, and put his hand on her leg while making a left turn in a car. She stated that, once, MacArthur had called her at home and asked her out for drinks. Allen offered evidence that MacArthur had engaged in extramarital affairs with two other WXXV employees. MacArthur admitted one such affair but denied that he ever harassed Allen. The jury unanimously found for Allen and awarded her $227,000 in damages.
LAW AND ANALYSIS
¶ 14. The statement of the issues below is taken verbatim from Morris's appellate brief.
I. THE CIRCUIT COURT'S ENTRY OF DIRECTED VERDICT IN FAVOR OF EMPLOYER DISMISSED ALL CLAIMS FOR RELIEF EXCEPT BREACH OF EMPLOYMENT CONTRACT.
II. EMOTIONAL DISTRESS DAMAGES ARE NOT RECOVERABLE IN BREACH OF EMPLOYMENT CONTRACT CASES SUCH AS THIS.
III. THE STANDARD FOR RECOVERY OF EMOTIONAL DISTRESS DAMAGES IS THE SAME AS THE STANDARD FOR RECOVERY OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DAMAGES AND THE STANDARD FOR RECOVERY OF PUNITIVE DAMAGES; AND EMPLOYEE, REBECCA ALLEN, DID NOT MEET THAT STANDARD.
IV. THE CIRCUIT COURT ERRONEOUSLY GAVE THE JURY A TORT DAMAGES INSTRUCTION IN A BREACH OF CONTRACT CASE.
V. AFTER OVERRULING EMPLOYER'S MOTIONS IN LIMINE PRIOR TO TRIAL, THE COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE JURY TO CONSIDER EVIDENCE LEADING TO A VERDICT WHICH WAS THE SUBJECT OF BIAS, PASSION, PREJUDICE AND WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
VI. THE COURT SHOULD ENTER JUDGMENT NOTWITHSTANDING THE VERDICT.
VII. EIGHT PERCENT INTEREST ON THE JUDGMENT IS EXCESSIVE.
We have recast Morris's issues regarding emotional distress damages and denial of a JNOV into the following issue:
I. WHETHER ALLEN WAS ENTITLED TO RECOVER COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS/MENTAL ANGUISH FOR BREACH OF THE EMPLOYMENT CONTRACT?
¶ 15. Allen presented testimony at the trial that she suffered emotional distress as a result of the termination. At the close of Allen's case, Morris moved for a directed verdict on all Allen's claims. Allen confessed the motion as to her tort claims for defamation and intentional infliction of emotional distress, leaving solely her breach of contract claim before the court. Over Morris's objections, the trial court instructed the jury:
Should your verdict be for the plaintiff in this case, you may consider the following factors to determine the amount of compensatory damages to award as may be shown by a preponderance of the evidence:
1. The type of injuries to the plaintiff, if any, and their duration.
2. Past, present mental anguish, if any.
3. Lost salary for the duration of the contract.
4. Other damages incurred by the plaintiff as a result of the breach of the contract.
(emphasis added). The court also instructed the jury that Allen had a duty to mitigate loss of income by seeking other employment and that the jury must "reduce any award of damages to [Allen] by that amount of money [Allen] would have earned had she made reasonable efforts to become gainfully employed after leaving WXXV-TV and those amounts of money she did actually earn by becoming employed after leaving WXXV-TV, up to and until the end of the contract term." After the verdict, Morris moved for a JNOV or a new trial, arguing that Allen could not recover emotional distress damages for the breach of contract.
¶ 16. Morris correctly argues that the grant of a directed verdict on Allen's intentional infliction of emotional distress claim limited Allen's damages to those arising out of a breach of the employment contract. M.R.C.P. 50 cmt. Morris does not attack the jury's finding that the employment contract was breached. Morris's issues request that this Court determine (1) whether Allen was entitled to claim compensatory damages for mental anguish based upon the breach as a matter of law; (2) whether the jury instruction on mental anguish damages properly stated the law; and (3) whether Allen submitted sufficient evidence to enable her mental anguish claim to go to the jury.
A. Whether Allen was entitled to claim compensatory damages for mental anguish based upon the breach as a matter of law and whether the jury instruction on mental anguish damages properly stated the law.
¶ 17. Morris argues that the entry of a directed verdict on Allen's tort claim for intentional infliction of emotional distress barred her ability to recover mental anguish damages based only upon the breach of contract. We disagree. Having proceeded solely on her breach of contract claim, Allen was entitled to pursue all damages flowing from the breach.
¶ 18. Our precedent demonstrates that mental anguish damages may stem from a breach of an employment contract in certain circumstances. The traditional rule in breach of contract cases is that damages for emotional distress cannot be recovered absent proof of an independent intentional tort separate from the breach of contract. Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295 (Miss. 1992). In Morrison v. Means, 680 So. 2d 803, 805-06 (Miss. 1996), the supreme court held that mental anguish damages were recoverable in a case of breach of a contract for sale of goods upon proof of the elements of the tort of intentional infliction of emotional distress. As there was insufficient evidence to prove intentional infliction of emotional distress, the Morrison court reversed the jury's award of mental anguish damages. Id. at 807. This analysis has been applied to a mental anguish claim arising from an alleged breach of an employment contract. Patrick v. B.C. Rogers Poultry, Inc., 800 So. 2d 1218, 1220 (¶ 6) (Miss.Ct.App. 2001).
¶ 19. Allen argues that the supreme court has relaxed the standard for recovering mental distress damages for a contract breach. Allen cites Universal Life, in which the supreme court allowed recovery for mental anguish resulting from the breach of an insurance contract when the breach was accompanied by negligent conduct and emotional injury was an "entirely foreseeable" result of the negligence. Universal Life, 610 So. 2d at 295. The case of Southwest Mississippi Regional Medical Center v. Lawrence, 684 So. 2d 1257, 1269 (Miss. 1996) involved a breach of an employer's self-insurance agreement. The court stated that the majority view on recovery for emotional distress damages requires (a) an intentional or at least grossly negligent tort or (b) negligence accompanied by physical impact. The court recognized that it had issued a series of cases relaxing the majority rule, including Universal Life. Id. The Southwest court stated that "[t]he upshot of these cases in the present rule is a plaintiff may recover for emotional injury proximately resulting from negligent conduct, provided only that the injury was reasonably foreseeable by the defendant." Id. The viability of the reasonable foreseeability standard was affirmed in Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736, 743 (¶ 21) (Miss. 1999), involving the breach of a homebuilder's warranty.
¶ 20. The supreme court revisited this issue in American Bankers Insurance Co. v. Wells, 819 So. 2d 1196, 1208-09 (¶¶ 40-43) (Miss. 2001). The court acknowledged that it had not overruled the line of cases applying the minority view sanctioning recovery for emotional distress based upon reasonable foreseeability. Id. at (¶ 41) (citing Southwest, 684 So. 2d at 1269; Universal Life, 610 So. 2d at 295). The court explained that it had most recently followed the majority view barring recovery for "mental anguish unaccompanied by demonstrable physical or mental injury" unless the defendant's conduct was "malicious, intentional, willful, wanton, grossly careless, indifferent or reckless." Id. at (¶¶ 40, 43) (citing Summers ex rel. Dawson v. St. Andrew's Episcopal Sch., Inc., 759 So. 2d 1203, 1211-12 (Miss. 2000)). Then, the court concluded, "[a] plaintiff therefore may not recover emotional distress damages resulting from ordinary negligence, without proving some sort of physical manifestation of injury or demonstrable physical harm." Id. at (¶ 43).
¶ 21. Allen argues that after American Bankers the minority view remains intact such that a plaintiff may recover for emotional distress caused by ordinary negligence if the emotional distress was reasonably foreseeable. It is apparent to this Court that the clear holding of American Bankers is that a plaintiff "may not recover emotional distress damages resulting from ordinary negligence" unless the plaintiff also proves "some physical manifestation of injury or demonstrable physical harm." Id.
¶ 22. The aforementioned precedent indicates that a plaintiff can obtain emotional distress damages upon proof that a breach of contract was accompanied by conduct amounting to the tort of intentional infliction of emotional distress. Morrison, 680 So.2d at 805-06. It also appears that a plaintiff may obtain damages for emotional distress for a breach of contract upon a showing that the plaintiff suffered emotional distress resulting from a negligent act by the defendant along with "some physical manifestation of injury or demonstrable physical harm." Am. Bankers, 819 So.2d at (¶ 43); Morrison, 680 So. 2d at 806. While American Bankers renewed the requirement of physical injury to recover for emotional distress caused by ordinary negligence, it did not retract the plaintiff's ability to get damages for negligent infliction of emotional distress in breach of contract actions that was established in cases such as Universal Life, Southwest, and Adams. See 22 Am. Jur. 2d Damages § 49 (2003) (If the breach is not accompanied by outrageous conduct, "as a general rule, in order to recover for mental or emotional distress suffered as a result of breach of contract, the plaintiff must suffer some accompanying physical injury. . . .").
We observe that Allen's claim for breach of the implied covenant of good faith and fair dealing was not a separate avenue for obtaining mental anguish damages without the requisite proof. In an ordinary contract situation, breach of the implied covenant is afforded the same remedy as a breach of the express contract terms. Cenac v. Murry, 609 So. 2d 1257, 1273 (Miss. 1992). The appropriate measure of damages for breach of the implied covenant is the expectancy interest of the non-breaching party. Id.
¶ 23. Morris objected to the mental anguish jury instruction as given by the trial court. Morris contended that, for Allen to recover mental anguish damages, the jury needed to be instructed on the elements of intentional infliction of emotional distress. Citing Universal Life and the reasonable foreseeability standard, the lower court overruled Morris's objection to the jury instruction. The lower court did not instruct the jury on either intentional infliction of emotional distress or negligent infliction of emotional distress accompanied by physical injury. Rather, the instructions given by the court allowed the jury to award mental anguish damages to Allen based solely upon a finding that Morris breached the contract. We find that the lower court's holding was incorrect. In order to award emotional distress damages to Allen, the jury must have been given the opportunity to find that the breach of contract was accompanied by negligent or intentional infliction of emotional distress as outlined in American Bankers and Morrison. The jury lacked this opportunity. If Allen presented sufficient evidence of negligent or intentional infliction of emotional distress accompanying the breach to allow her mental anguish claim to go to the jury, then this instructional error requires a new trial.
B. Whether Allen submitted sufficient evidence to enable her mental anguish claim to go to the jury.
¶ 24. Morris argues that the trial court erroneously denied its motion for a JNOV regarding Allen's claim for mental anguish damages. A motion for a JNOV challenges the legal sufficiency of the evidence. Investors Prop. Mgmt., Ltd. v. Watkins, Pitts, Hill Assoc., 511 So. 2d 1379, 1381 (Miss. 1987). We review the denial of a JNOV by considering all of the evidence in the light most favorable to the prevailing party and give that party the benefit of all favorable inferences that might be drawn from the evidence. CC Trucking Co. v. Smith, 612 So. 2d 1092, 1098 (Miss. 1992). If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable persons could not have arrived at a contrary verdict, then the motion should be granted. AmSouth Bank v. Gupta, 838 So. 2d 205, 211 (¶ 12) (Miss. 2003). But if there is substantial evidence supporting the verdict, then this Court must affirm. Id.
¶ 25. Allen testified that, after the firing, she was disheartened and experienced a long period of depression. She lost weight, had an upset stomach, and had difficulty sleeping through the night. She resumed smoking cigarettes. She was stressed over the loss of income, and felt embarrassed and fearful over the prospect of seeking another anchor job and having to admit she was fired. Allen's former roommate testified that for over a year Allen went through "an extreme state of depression and shock" after the firing, and that she cut herself off from everyone except her family. Allen's husband, Ben Powers, who was then her fiance, testified that after the firing Allen was depressed for four to five months. He stated that for eight to nine months afterward, when Allen was not doing her radio show she would lock herself in her room watching television with the lights off.
¶ 26. "[A] plaintiff asserting a claim for mental anguish, whether as a result of simple negligence or an intentional tort, must always prove that the emotional distress was a reasonably foreseeable result of the defendant's conduct." Adams, 744 So. 2d at 743 (¶ 21). To prove the intentional tort, the plaintiff must show the defendant's conduct was "malicious, intentional, willful, wanton, grossly careless, indifferent or reckless." Morrison, 680 So. 2d at 806. The conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community," and is likened to that required for an award of punitive damages. Id. at 805-06 (citing Restatement (Second) of Torts § 46). "Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities." Diamondhead Country Club and Prop. Owners Ass'n. v. Montjoy, 820 So. 2d 676, 684 (¶ 21) (Miss.Ct.App. 2000). Upon proof of a willful tort, whether the plaintiff receives nominal or compensatory damages is determined by the severity of the emotional distress suffered. Whitten v. Cox, 799 So. 2d 1, 10 (¶¶ 15-16) (Miss. 2000).
¶ 27. It is the nature of the defendant's conduct, not the extent of the emotional distress suffered, which provides the basis for the claim. Adams, 744 So. 2d at 742 (¶ 17). Allen urges that there was sufficient evidence showing that Morris and MacArthur's conduct surrounding the wrongful termination was intentional, outrageous, malicious or grossly careless. Allen argues that Morris's intentional breach of the for-cause termination clause of the contract was an outrageous or grossly careless act. She contends that it should have been reasonably foreseeable to Morris that the wrongful termination would cause Allen severe emotional distress given Morris and MacArthur's knowledge of Allen's strong desire to work as an anchor. She also cites MacArthur's angry cursing and name-calling at the termination meetings, and the fact that MacArthur withheld her final paychecks as evidence of outrageous behavior.
¶ 28. "Meeting the requisites of a claim for intentional infliction of emotional distress is a tall order in Mississippi." Jenkins v. City of Grenada, 813 F. Supp. 443, 446 (N.D. Miss. 1993). This Court has stated that, in employment disputes, emotional distress damages are usually not recoverable. Brown v. Inter-City Fed. Bank for Sav., 738 So. 2d 262, 265 (¶ 9) (Miss.Ct.App. 1999). "Only in the most unusual cases does the conduct move out of the `realm of an ordinary employment dispute' into the classification of `extreme and outrageous,' as required for the tort of intentional infliction of emotional distress." Id. In Diamondhead v. Montjoy, Montjoy was terminated and sued his former employer for intentional infliction of emotional distress. Diamondhead, 820 So. 2d at 678 (¶ 1). When Montjoy was fired, board members watched Montjoy pack his things and told him that they wanted to make sure he did not take anything belonging to the employer. Id. at 684 (¶ 22). He was escorted out of the building by security in front of the other staff. Id. He also claimed that the employer conspired to fire him and asked other employees to look for incriminating evidence against him. Id. This Court stated that, while the employer's desire to get rid of Montjoy and its request that other employees gather evidence against him might have been a little upsetting, it simply did not rise to the level of extreme and outrageous conduct. Id. at (¶ 23).
¶ 29. In Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79, 85 (¶ 24) (Miss.Ct.App. 2004), Raiola argued that he was wrongfully terminated and that at a meeting discussing the termination, his employer called him a thief and made inappropriate remarks about his Italian heritage. The Court held that the employer's conduct was not extreme and outrageous to justify redress. Id. Similarly, in Speed v. Scott, 787 So. 2d 626, 629 (¶ 10) (Miss. 2001), Scott, a volunteer fireman, alleged that the fire chief called him a thief at one meeting, a liar and a thief at another meeting, repeated the phrase at a fireman's meeting, and used the phrase "liar and thief" about him at someone's house. Scott alleged that the name-calling caused him severe emotional distress. Id. at (¶ 11). The court rejected Scott's claim of intentional infliction of emotional distress, finding that the fire chief's actions were not "such conduct as would cause an observer of ordinary sensibilities to suffer `outrage or revulsion.'" Id. at (¶ 20). The court referenced conduct that has sufficed to undergird emotional distress damages in the past, such as a plot by an unwed father's girlfriend and her parents to hide the father's child and arrange for its adoption and a car dealership's forgery of a customer's signature on a sales contract and sale of the contract to a finance company, resulting in damage to the customer's credit. Id. at (¶ 17) (citing Smith v. Malouf, 722 So. 2d 490, 498 (Miss. 1998) (overruled on other grounds); T.G. Blackwell Chevrolet Co. v. Eshee, 261 So. 2d 481, 486 (Miss. 1972)).
¶ 30. Taken as true, the evidence favoring Allen regarding Morris and MacArthur's conduct surrounding Allen's wrongful termination was similar to the conduct which has been found insufficient to constitute outrageous conduct justifying recovery for intentional infliction of emotional distress. MacArthur's anger and name-calling at the termination meetings was certainly inappropriate and upsetting, but it does not rise to the level of extreme, outrageous or grossly careless conduct beyond the realm of mere employment disputes such as those in Diamondhead and Raiola. Morris's firing of Allen without cause in breach of her employment contract simply constituted an employment dispute and likewise was not sufficiently "outrageous and extreme" to warrant emotional distress damages. This result is not altered by Morris's knowledge that Allen vehemently stated her desire for the anchor position; an employer's breach of an employment contract usually can be expected to engender some dashing of an employee's hopes for success and some worry over lost income and, without more, does not rise to the level of extreme and outrageous conduct sufficient to warrant tort damages.
¶ 31. Allen also argues that MacArthur's withholding of her paychecks until she paid Morris the WLOX contract buyout sum of $6,000 was outrageous conduct supporting an award of emotional distress damages. We disagree. An employer's use of leverage to enforce its understanding of the employment arrangement fundamentally constitutes an employment dispute. Such an act may entitle an employee to damages for breach of contract, but it does not automatically embody conduct so atrocious that it is utterly intolerable in a civilized society, and does not do so here. As there was insufficient evidence of outrageous conduct, Allen was not entitled to a jury instruction on damages for intentional infliction of emotional distress.
¶ 32. Allen does not seriously contend that she submitted sufficient evidence of physical injury to support damages for negligent infliction of emotional distress as required by American Bankers. Indeed, the evidence that Allen was physically affected by her wrongful termination is too scant to support recovery on this ground. The only evidence of physical injury or illness was Allen's testimony that she had an upset stomach and lost weight. Allen submitted no medical evidence of physical disturbance. In Harbin v. Jennings, 734 So. 2d 269, 273-74 (¶ 17) (Miss.Ct.App. 1999), Harbin claimed that she suffered emotional distress that caused sleeplessness, irritability and an inability to maintain a standard body weight. Harbin did not present any medical or psychological expert testimony supporting the claim. Id. at 274 (¶ 17). The Court held that, in order to be compensable, an emotional distress claim must show something beyond the kinds of discomforts Harbin experienced. Id. Allen's description of her physical symptoms is similar to that found insufficient to support recovery in Harbin. Therefore, Allen was not entitled to a jury instruction on damages for negligent infliction of emotional distress.
¶ 33. We find that the trial court should have granted Morris's motion for a JNOV regarding Allen's claim for emotional distress damages. It is impossible for this Court to calculate that portion of the jury's general verdict of $227,000 attributable to emotional distress damages, if any. We are unable to discern the proper amount of contract damages due to the issues of Allen's mitigation of damages, Allen's clothing expenditure, and the status of the $6,000, all issues which are not before this Court. Therefore, we reverse and remand for a new trial limited to the issue of actual damages based upon the breach of contract and excluding damages for mental anguish/emotional distress. AmSouth Bank v. Gupta, 838 So. 2d 205, 210 (¶ 4) (Miss. 2003).
V. WHETHER THE TRIAL COURT ERRED IN DENYING MORRIS'S MOTIONS IN LIMINE.
¶ 34. Morris appeals from the trial court's denial of three of its motions in limine. We review the trial court's admission or exclusion of evidence for abuse of discretion. Terrain Enterprises, Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995). If the lower court applied the correct legal standard, we will affirm if the decision was "one of several reasonable ones which could have been made." Pierce v. Heritage Properties, Inc., 688 So. 2d 1385, 1388 (Miss. 1997). Even if the lower court's decision was incorrect, we will not reverse unless the error affected a substantial right of a party. M.R.E. 103 (a).
A. Motion to exclude evidence of Allen's competence as a news anchor subsequent to her termination from WXXV.
¶ 35. Several witnesses who worked with Allen at WLOX testified that she was a competent news anchor both before she left WLOX to go to WXXV and after she resumed work at WLOX in October 2001. Morris argues that the trial court should have excluded this testimony under Mississippi Rule of Evidence 403 because it was more prejudicial than probative. Morris contends that the evidence was irrelevant and unduly prejudicial because it related to Allen's performance after leaving WXXV. Morris also complains that the testimony was prejudicial because it was delivered by WLOX news anchors who were well-known on the Mississippi Gulf Coast and probably regarded by the jurors as worthy of elevated respect.
¶ 36. Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.E. 401. Mississippi Rule of Evidence 403 provides that evidence, though relevant, may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E. 403. On appellate review, this Court does not "engage anew in the 403 balancing process," but limits its inquiry to whether or not the trial court "abused its discretion in weighing the factors and admitting or excluding the evidence." Gen. Motors Corp. v. Jackson, 636 So.2d 310, 314 (Miss. 1992).
¶ 37. Allen offered the evidence of her competence at WLOX both before and after she worked at WXXV to show continuity in the high quality of her job performance. At the motion hearing, Morris argued that the evidence was irrelevant because time had elapsed between Allen's departure from WXXV and her return to WLOX. Morris argued the evidence was highly prejudicial because it could mislead the jury into thinking that Allen performed just as well at WXXV as she did after gaining experience as a weekend anchor at WLOX. The trial court rejected this argument, holding that the evidence was relevant to show the continuity of Allen's job performance and not unduly prejudicial because its weight and credibility could be thoroughly attacked on cross-examination.
¶ 38. We find that the trial court's admission of the evidence of Allen's subsequent job performance was not an abuse of discretion. The evidence was relevant because it tended to disprove Morris's contention that Allen performed poorly at WXXV and that she was fired for cause. The trial court acted well within its discretion in finding that the testimony about Allen's subsequent performance at WLOX was fertile ground for cross-examination. Further, because Morris admitted that the other WLOX anchors could testify about Allen's work at WLOX before she went to WXXV, the status of the anchors in the community is not a legitimate ground for objecting to their testimony about her subsequent performance at WLOX. This issue is without merit.
B. Motion to exclude evidence of MacArthur's sexual or romantic conduct.
¶ 39. Morris moved to exclude the evidence of MacArthur's affairs and his sexual and romantic conduct. The main thrust of Allen's case was that she was a competent anchor and that the real reason she was terminated was that she rejected MacArthur's sexual advances. The court found that the evidence was relevant to show the motive for Allen's termination and admitted the evidence pursuant to Mississippi Rule of Evidence 404(b). On appeal, Morris does not contest the trial court's Rule 404(b) ruling, but argues that the evidence was irrelevant because Allen failed to file a sexual harassment suit after receiving a right to sue letter from the EEOC, or because Russo was wholly responsible for Allen's firing and demotion. Morris also avers that the evidence was more prejudicial than probative under Mississippi Rule of Evidence 403.
¶ 40. Morris's relevance argument is without merit. Allen's failure to pursue a sexual harassment lawsuit attacking MacArthur's behavior does not moot the relevance of that behavior in her wrongful termination suit. This is because Allen alleged her rejection of MacArthur's sexually harassing behavior as the motive for her termination. The evidence of his sexual and romantic conduct toward Allen and others was certainly relevant to show that MacArthur had an impermissible motive for the firing.
¶ 41. Morris also argues that the evidence was irrelevant because the evidence showed that Russo, not MacArthur, was entirely responsible for terminating Allen. That contention does not comport with the evidence presented at the trial. Russo testified that he merely recommended Allen's termination to MacArthur. MacArthur testified that he and Russo made the decision to terminate Allen, and that he, MacArthur, wanted Allen to be fired. Because a fact question existed as to MacArthur's level of involvement in the termination decision, the evidence of his sexual and romantic conduct was relevant to show his possible wrongful motive for firing Allen.
¶ 42. The trial court did not perform an on the record balancing of prejudice and probative value of the sexual conduct evidence under Rule 403. As discussed above, the evidence of MacArthur's sexual conduct was especially probative because it tended to show MacArthur's motive for the wrongful termination, and the main thrust of Allen's case was that she was fired for reasons other than those stated by Morris. "The more probative the evidence is, the less likely it is that a 403 factor will be of sufficient consequence to substantially outweigh the probative value. . . ." Miss. Power Light v. Lumpkin, 725 So. 2d 721, 732 (¶ 55) (Miss. 1998). The trial court's ruling was certainly within its discretion, and we affirm the admission of the evidence of MacArthur's sexual and romantic conduct.
C. Motion to exclude evidence of the reason for MacArthur's termination by WXXV.
¶ 43. WXXV terminated MacArthur in July 1999 for financial improprieties and faulty record keeping. Morris moved to exclude evidence of the reasons MacArthur was fired. The court granted the motion in part and overruled the motion in part, allowing Allen to explore the grounds for MacArthur's separation from WXXV only if MacArthur testified about his credentials to evaluate Allen's competency and his decision to terminate Allen based on the evaluation. On direct examination, Morris elicited testimony from MacArthur about the reasons he was fired. MacArthur's testimony indicated that his termination was based upon relatively minor mistakes. On cross-examination, Allen questioned MacArthur about the truthfulness of his explanation for the termination. Morris did not contemporaneously object to this line of questioning.
¶ 44. Morris elicited the very testimony on direct examination which it had sought to exclude via the motion in limine. Morris's elicitation of the testimony waived its standing objection, and opened the door to Allen's cross-examination on the same subject. Cheeks v. State, 843 So. 2d 87, 91 (¶ 9) (Miss.Ct.App. 2003). If any valid argument existed supporting Morris's position, that argument was waived by Morris's failure to contemporaneously object to the cross-examination. Id. Thus, Morris cannot now be heard to complain, and this issue is without merit.
VII. WHETHER THE TRIAL COURT'S IMPOSITION OF EIGHT PERCENT INTEREST ON THE JUDGMENT IS EXCESSIVE.
¶ 45. The trial court requested suggestions from the parties on an appropriate rate for post-judgment interest. Morris submitted a letter proposing rates charged by federal courts and commercial lenders equal to or less than 4.75 percent. In its order overruling Morris's post-trial motions, the trial court imposed post-judgment interest at a rate of eight percent. Morris argues that eight percent is too high considering rates charged by the federal courts and commercial lenders.
¶ 46. Mississippi Code Annotated section 75-17-7 (Rev. 2000) states that "all judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint." A former version of § 75-17-7 provided that "[a]ll other judgments and decrees shall bear interest at the rate of eight percentum (8%) per annum." Preferred Risk Mut. Ins. Co. v. Johnson, 730 So. 2d 574, 580 (¶ 31) (Miss. 1998) (citing Miss. Code Ann. § 75-17-7 (1975)). In Preferred Risk, the trial court imposed a post-judgment interest rate of eight percent under the revised statute. Id. at (¶ 31). The supreme court held that the trial court acted within its discretion in ordering the eight percent interest rate. Id. As in Preferred Risk, in this case the lower court was within its discretion in imposing the eight percent post-judgment interest rate pursuant to the revised § 75-17-7.
ISSUE ON CROSS-APPEAL
I. WHETHER THE CIRCUIT COURT SHOULD HAVE ALLOWED THE JURY TO CONSIDER PUNITIVE DAMAGES.
¶ 47. Allen argues that the trial court erred by denying her request to submit her claim for punitive damages to the jury. The propriety of punitive damages for breach of contract is governed by the common law. Am. Funeral Assurance Co. v. Hubbs, 700 So. 2d 283, 286 (Miss. 1997). "In order for punitive damages to be awarded, the plaintiff must demonstrate a willful or malicious wrong or the gross, reckless disregard for the rights of others." Paracelsus Health Care Corp. v. Willard, 754 So. 2d 437, 442 (¶ 20) (Miss. 1999). Viewing the evidence in the light most favorable to Allen, we have already determined that Morris's conduct was insufficiently malicious, intentional, willful, wanton, or grossly reckless to support a claim of intentional infliction of emotional distress. Therefore, the evidence cannot support an award of punitive damages. Diamondhead, 820 So. 2d at 684 (¶ 20). This issue is without merit.
¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND REMANDED IN PART ON DIRECT APPEAL FOR A NEW TRIAL ON THE LIMITED ISSUE OF ACTUAL DAMAGES FOR BREACH OF CONTRACT AND AFFIRMED ON CROSS-APPEAL. COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANTS AND THE APPELLEE. KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.